Presumption of notice has been interpreted by the Full Bench of Allahabad High Court in Ganga Ram v. Phulwati (FB) A.I.R. 1970 Allahabad 446, where following questions were referred:-
(1) Whether a notice under Section 3 of the UP. (Temporary) Control of Rent and Eviction Act, even if combined with a notice under Section 106 of the Transfer of Property Act, has to be served on the tenant personally?
(2) Whether it is incumbent on the plaintiff to prove the endorsement of refusal on the notice sent by registered post by producing the postman or other evidence in case the defendant denies service on him?
(3) Whether in the circumstances of the present case, the Courts below were right in raising the presumption under Section 114 of the Evidence Act in favour of the landlord?
The findings of the Full Bench in Ganga Rant v, Phulwati (supra) are quoted below:-
“It is not the duty of the plaintiff to prove that the defendant, after having received notice, had actually read it and understood its contents. Similarly, where the registered envelope contains a correct address of the tenant and the addressee either cannot be met or refuses to take notice, there appears to be no reason why the notice should not be deemed to have been properly served on the addressees.
In the case of Harihar Banerji v. Ramshashi Roy, AIR 1918 PC 102 it was held that if a letter properly directed containing notice to quit is proved to have been put into the post office, it is presumed that the letter reached its destination at the proper time according to the regular course of business of the post office and was received by the person to whom it was addressed.
In the absence of proof to the contrary, it will be presumed that the refusal had been made by the tenant to whom the registered letter was correctly addressed at the time when the letter could be expected to reach him in the ordinary course. With great respect, and for the reasons given by us, we do not find it possible to agree with the views expressed in the abovementioned cases decided by the Bombay, Madhya Bharat and Nagpur High Courts.
It has been further contended by the learned Counsel for the appellant that although a presumption under Section 27, General Clauses Act, may be made in respect of a notice under Section 106 of the Transfer of Property Act, it cannot be made in-respect of a notice under Section 3 of the UP. (Temporary) Control of Rent and Eviction Act, and Therefore, where a combined notice under Section 106 of the Transfer of Property Act, and Section 3 of the UP (Temporary) Control of Rent and Eviction Act is sent, a presumption should be raised only under Section 114 of the Indian Evidence Act, and not under Section 27 of the General Clauses Act?”
Relying upon the provisions of Illustrations E and F of Section 114 of the Indian Evidence Act as well as Rule 62, 63 and 64 (1) of the Rules framed under the Indian Post Office Rules and Section 27 of the General Clauses Act, it has been held that when a registered article or a registered letter is handed over to an accepting or receiving post office, it is official duty of the post office to make its delivery to the addressee. The observations of the Full Bench are quoted below:-
“It is also necessary to consider the rules framed under the Act, Indian Post Office Rules, 62, 63, 64 (1) read as follows:-
“62. A receipt shall be given to the person who presents an article for registration at the post office window during the hours prescribed for posting registered articles.
63. No registered article shall be delivered to the addressee unless and until he or his agent has signed a receipt for it in such form as the Director-General shall prescribe.
64. (1). If the sender of a registered article pays at the time of posting the article a fee of one anna in addition to the postage and registration fee, there shall be sent him on the delivery of the article a form of acknowledgment which shall be signed by the addressee or if the addressee refuses to sign shall be accompanied by a statement to the effect that the addressee has refused to sign.”
A perusal of the relevant provision of the Posts and Telegraphs Manual, Vol I, would indicate the working in the post offices. Paragraphs 183, 191 of the Manual may be examined. Paragraph 183 deals with receipts, acknowledgments and undelivered articles taken from postman. The relevant portion of sub-para (1) of paragraph 183 reads as follows:-
“The receipts (Form R.P. 31) and acknowledgments (Form R.P. 54 or R.P. 54-a) for the registered articles delivered, the undelivered registered articles with their receipts and acknowledgment (if any)………..must be taken by the registration or parcel clerk, as the case may be, from the postman immediately on their return to the office………………..”.
It is, therefore, evident that in the case of a notice under Section 106 of the Transfer of Property Act, after that notice has been duly dispatched through the post office by registered post to the correct address of the tenant, a presumption about due service of that notice can be made under illustration (e) and (f) of Section 114 of the Indian Evidence Act, which reads as follows:–
114. The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to facts of the particulars case.
Illustrations:-
The Court may presume– ……..(e) that judicial and official acts have been regularly performed; (f) that the common course of business has been followed in particular case…………….”
When a registered article or a registered letter is handed over to an accepting or receiving post office, it is the official duty of the postal authorities to make delivery of it to the addressee. Human experience shows that except in a few exceptional cases letters or articles received by the post office are duly, regularly and properly taken to the addressee.
Consequently, as a proposition it cannot be disputed that when a letter is delivered to an accepting or receiving post office it is reasonably expected that in the normal course it would be delivered to the addressee. That is the official and the normal function of the post office.
Taking into consideration the manner in which the post office deals with registered letters, the endorsement on the notice “Refused” strengthens the presumption that an attempt was made to deliver the notice to the addressee.
Notice under Section 106 of the Transfer of Property Act
In the case of a notice under Section 106 of the Transfer of Property Act a presumption can, therefore, be made also under Section 27 of the General Clauses Act, which reads as follows:-
“Where any Central Act or Regulation made after the commencement of this act authorities or requires any document to be served by post, whether the expression ‘serve’ or either of the expressions ‘give’ or ‘send’ or any other expression is used, then, unless a different intention appears the service shall be deemed to be affected by properly addressing, prepaying and posting by registered post, a letter containing the document, and unless the contrary is proved to have been affected at the time at which the letter would be delivered in the ordinary course of post.”
Section 106 of the Transfer of Property Act provides for a mode of service of the notice and, therefore, the provisions of Section 27 of the General Clauses Act, shall apply and once it is established that a registered notice was delivered at the receiving post office containing the correct address of the tenant, a presumption of law can be made that the notice has been served on the addressee.
The tenant may be a minor of a person of unsound mind, or merely a justice person, not capable of being served personally. For fear of service of notice on him the tenant may also start refusing all the registered letters sent by the landlord by post. The intention of the law could never be that the tenant must personally accept a notice of demand before he can be ejected from his tenancy.
The fact that the notice was returned back to the sender with an endorsement “Refused” does not, in our opinion, dislodge the presumption that the registered notice had reached the addressee. On the other hand, it strengthens the presumption that the notice had reached the addressee. It could not be delivered to him because he refused to accept it.
In Anil Kumar v. Nanak Chandra Verma 1990 (2) ARC Page 542 and the Apex Court has observed that if the notice was not personally served and the plaintiff has, therefore, discharged the initial burden by examining himself presumption lies in favour of the plaintiff. The observations are quoted below:-
“The principal question that arises for consideration relates to the validity of the notice issued under Section 106 of the Transfer of Property Act. The notice was not personally served but there is an endorsement of the postman stating that it has been refused. The case of the tenant was that he was not at all present during the period when the postman visited the premises for service and the endorsement of the postman was, therefore, not correct. He has discharged the initial burden by examining himself and it would be for the other side to prove the valid service.”
It is fairly settled that there is presumption of due service when the registered letter which contains the correct address was returned by the postman with the report that the addressee has refused to accept it. The said presumption is available both under the Evidence Act as well as under the Post Office Act.
Reference
As held by Uttrakhand High Court in Kali Ram (Sri) vs Mirza Waker Ali And Ors. (2004)